Ethics & Public Policy Center

On the Kagan Nomination

Just as surgical experience provides the best training for being a master surgeon, judicial experience provides the best training for being a Supreme Court justice — at least, that is, if one were looking for justices who are adept at interpreting the law dispassionately rather than imposing their own subjective sense of empathy. But even if attacks on the “judicial monastery” were sound, it is difficult to see how Elena Kagan's career in the elite world of legal academia could be further removed from the real-life experiences of most Americans.

What explains the striking gap between President Obama's populist rhetoric about what he was looking for in a justice and the reality of the Kagan pick? In part it may be that Obama's outlook has itself been so shaped by the academic milieu that he doesn't understand how alien that environment is to most Americans — how, for example, anyone could look askance at kicking military recruiters off a college campus while U.S. soldiers are risking their lives abroad to defend us.

It may also be that Obama's rhetoric was camouflage for picking a justice who would both rubber-stamp his massive effort to transform the relationship between government and the American people and continue the liberal judicial activist project of inventing constitutional rights that entrench the policy positions of the left.

The Supreme Court seat to which Elena Kagan has been nominated has been occupied for the past 71 years (since 1939) by only two justices, William O. Douglas and John Paul Stevens. Having just turned 50, Kagan might well serve 30 years or more in that seat. The difference that she might make in the long term turns heavily on the imponderable question of who her eight colleagues will be over that period.

In the shorter term, President Obama's evident aspiration is that Kagan would be effective in cultivating the court's swing voter, Justice Anthony Kennedy, and in moving him leftward. The resulting five-justice liberal majority could be expected to reject challenges to Obama's broad expansions of government power and to invent new rights, such as a federal constitutional right to same-sex marriage.

It's far from clear that her consensus-building skills will transfer to the court. As dean of Harvard Law School, Kagan had ample resources to use to win support and to make everyone happy. She won't have those resources as a junior justice. Justice Kennedy may also find insulting the notion that she can so easily sway him.

President Obama claimed he was searching for a Supreme Court justice who would protect the concerns of American citizens. By that standard, Elena Kagan is a very strange pick.

While American soldiers were fighting Islamic terrorists abroad and defending our national security, Elena Kagan kicked military recruiters off the Harvard law school campus. In doing so, she elevated her own ideology above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.

Kagan has no judicial experience, hardly any real-world legal experience and a scant record of legal scholarship. She's been adept at cultivating the powerful, as her paid role as a Goldman Sachs adviser shows. Her primary advantages over the other contenders for the nomination were that she's an Obama insider and that she's largely succeeded in hiding her legal views. Her nomination deserves rigorous scrutiny.